STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-778

)

WAYMOND SPENCER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a contract dated April 11, 1977, between the City of Clearwater and the Division of Administrative Hearings, and an agreement dated June 7, 1977, between the parties herein, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:00 A.M. at the Fire Department Training Room, 520 Sky Harbor Drive, Clearwater, Florida, on June 13, 1977.

APPEARANCE

For Petitioner: Frank X. Kowalski, Esquire

Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Ronald E. Smith, Esquire

308 South Garden Avenue Clearwater, Florida 33516

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On or about January 28, 1977, at approximately 2:00 P.M., respondent Spencer, Clarence Jones, and John Aaron were all on duty as employees of the petitioner. The three men were dressed in City work clothes and were riding in a small truck with a City of Clearwater emblem on the side. John Aaron was driving the truck.

   
   

2. As the City truck approached the intersection of Jones Street and Garden Avenue in Clearwater at a speed of about 5 miles per hour, it came upon three teenage pedestrians -- two girls and a boy -- walking on the left side of the rode. Driver Aaron said "Hey, now" or "Hey baby" to one or both of the girls. One of the girls said something offensive in reply. At that point, respondent Spencer asked Aaron to stop the truck. After two or three such requests, Aaron stopped the truck and respondent Spencer got out. By this time, the three teenagers had begun to walk away from the truck into a vacant field.

3. Respondent Spencer walked up to the teenagers and one of the girls called him a "nigger" and continued to walk away. Spencer testified that the same girl swung at him with her fist. Neither Aaron nor Jones saw the girl make any threatening gestures toward respondent. After respondent was called a "nigger," he removed his belt and hit the girl twice with the belt as she was walking away. Respondent then returned to the City truck and the three employees drove off.

   
   

4. By a "termination and dismissal notice," respondent was advised that he was dismissed as an employee of the City of Clearwater for his activities occurring on January 28, 1977. As causes and reasons therefor, petitioner listed three violations of Rule 14 of the Civil Service Rules of Clearwater. (Exhibit 4)

   
   

5. Respondent timely filed his answer and explanation to the charges, petitioner did not accept the same and respondent therefore requested a hearing pursuant to City Ordinance Number 1643, S2-38. Pursuant to a contract between the City of Clearwater and the Division of Administrative Hearings, the undersigned Hearing Officer was duly designated to conduct the hearing.

   
   

6. By an Agreement between the parties dated June 7, 1977, the parties recognized the recent ruling of the Circuit Court in and for Pinellas County (Civil Case No. 77-1023-7) which held invalid the referendum election amending the City's Civil Service System. Expressing doubt as to Whether the hearing should be held before the Civil Service Board or before a Hearing Officer appointed by said Board, the parties mutually agreed to waive any and all rights to a hearing before the Board, and to abide by the judgment rendered by the Board pursuant to the findings of the Hearing Officer pursuant to Ordinance Numbers 1643 and 1649, subject to the judicial review procedures established by law. (Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

7. An employee in the classified civil service may be suspended, demoted or dismissed for just cause. The employing agency has the burden of presenting evidence to support the basis of the charges against the employee and to illustrate that the disciplinary action taken is in accordance with established rules and procedures.

   
   

8. In this proceeding, the City of Clearwater has clearly sustained its burden of showing that on the afternoon of January 28, 1977, respondent engaged in offensive and disgraceful conduct while on duty, which conduct would tend to embarrass the City or bring its service into public disrepute. Such conduct constitutes a violation of the Clearwater Civil Service Board Rules and Regulations, specifically Rules 14(1)(e) and 14(1)(j), and provides just cause for dismissal under Rule 14(4).

   
   

9. The facts of this case indicate that respondent Spencer, while not initially provoking the name-calling incident, prolonged the incident by requesting the driver to stop the truck and then pursuing the teenagers as they were walking away. Even if Mr. Spencer's version of the facts were to be believed -- i.e., that the girl raised her fist at him, this does not justify respondent's conduct of pursuing the teenagers and thereafter striking one of the girls with his belt.

   
   

10. Respondent's prime contention at the hearing was not that he did not commit the offenses charged, but that there was adequate provocation to justify

his conduct and that the disciplinary action taken against him was too severe. The undersigned Hearing Officer cannot agree with either of these contentions. The offenses of which respondent has been guilty are serious and merit serious disciplinary action on petitioner's part. Subject only to the limitation that disciplinary action be taken for just cause, the employing agency has full discretion to determine whether an employee is to be dismissed, suspended or otherwise disciplined. State Dept. of Pollution Control v. State Career Service Commission and Shane H. Hummel, 320 So.2d 846 (Fla. App. 1st 1975); State Dept. of Administration, etc. v. Hunter, 323 So.2d 24 (Fla. App. 1st, 1975). Here, the petitioner carried its burden of proof to establish the charges against respondent. Hence, the disciplinary action taken against him was for just cause and was within the guidelines established for such action.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's dismissal by the City of Clearwater be upheld and AFFIRMED.

Respectfully submitted and entered this 13th day of July, 1977, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frank X. Kowalski, Esquire Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Ronald E. Smith, Esquire

308 South Garden Avenue Clearwater, Florida 33516

Docket for Case No: 77-000778

Orders for Case No: 77-000778